Saturday, January 26, 2013

You might recall that a few years ago, we looked at the topic of human rights in the workplace. But although we've certainly touched on the concept of human rights in educationhere and there (including in more depth rather recently), given that there are quite a few parents out there who are very anxious to bring forward human rights complaints on behalf of students with learning disabilities, it might be useful to look at a few more such cases through the lens of actual complaints made under human rights legislation.

To that end, let's dissect a relatively recent case (April, 2012) of two students who alleged they were discriminated against by their school's failure to properly accommodate them.

In D.S. v. London District Catholic School Board, the Ontario Human Rights Tribunal dealt with two complaints, both alleging that the London District Catholic School Board had failed to accommodate students with learning disabilities.

The first student had been diagnosed with ADHD and a mild visual-spatial learning disability. After attending school in Grades 1 and 2, he was home-schooled for a while and then returned to school on a half-day schedule in Grade 5. Several issues had arisen over the course of the school year, including a disagreement regarding when he should start attending school full-time, the level of support he would receive from the Student Program Support Teacher (especially the amount of withdrawal assistance he would receive) and when and how the school would implement certain recommendations of a private psychologist.

The family was unsuccessful, with the Tribunal finding that the Board had provided proper accommodation for the student's needs as they were known at the time, noting that there was no expert evidence suggesting that the student required a half-day schedule in order to be successful and no specific evidence as to the amount of assistance or withdrawal assistance that he should receive. The Tribunal also found that the Board had implemented the psychologist’s recommendations, albeit not exactly in the form that the parents would have preferred.

Of note, the Tribunal went on to consider the procedure that school boards must follow to in order to meet their duty to accommodate under the Human Rights Code. In this regard, the Tribunal found that compliance with the procedural aspect of the duty to accommodate does not require a Board to provide a student with everything requested.Rather, it requires that there be discussion and consideration of how to accommodate the person’s disability-related needs. In this case, the extensive discussions between the Board, parents and other professionals throughout the school year were found sufficient to fulfill the Board’s procedural obligations. [1]

The parents of the second student, who had been diagnosed with ADHD and a communications learning disability, alleged that his teachers had consistently failed to accommodate his needs, which required “chunking” (breaking down a task into smaller component parts), using “mind maps” (an aid to organize thoughts for writing), and addressing other organization issues. They also alleged that the Board had failed to provide him with adaptive technology in a timely manner.

As in the first case, the Tribunal found that the Board had met its duty to accommodate. Contrary to the allegations, the teacher had went “above and beyond what is required of a teacher to provide additional support and assistance" to the student after school hours. Although there had been a six-month delay in trialing software that would address the student's writing issues, the Tribunal found that during that time, the teacher had provided the substance of the accommodation through a non-technological process.

Importantly, the Tribunal noted that although “more” could always be done to assist a student with a learning disability, whether more could have been done is not the appropriate question in cases regarding the duty to accommodate a student’s disability under the Code. Instead, the Tribunal must ask whether there is evidence that the student has specific disability-related needs requiring accommodation, and whether the school board failed to provide accommodation sufficient to meet those needs.

This decision confirmed one of the Tribunal's previous decisions to the effect that a school’s failure to meet parents’ expectations is not synonymous with a breach of the Code.Schools and school boards have a duty to engage in discussion with the parties involved and consider how to accommodate the student’s disability-related needs but there is no requirement that a school board agree to implement all of the accommodations that a student’s parents may request.

Further, the Code does not require a school board to implement accommodations that match the recommendations in an IEP (Individual Education Plan) or of a specialist precisely. As similar accommodation can sometimes be provided by a teacher or through the use of adaptive technology, as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate.

Take away points for all the would-be human rights activists out there:

a school’s failure to meet parents’ expectations is not synonymous with a breach of human rights legislation;

compliance with human rights legislation appears to require only "a discussion and consideration" of how to accommodate the student’s disability-related needs;

a school board is not required to implement accommodations that precisely match the recommendations in an IEP or of a specialist

as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate; and

the importance of expert evidence setting out precisely what the particular student's "disability-related" needs are cannot be overstated

It should be noted, of course, that this is a decision of the Ontario Human Rights Tribunal and not the Nova Scotia Human Rights Tribunal. Although I believe I recall a couple of cases out of New Brunswick quite a few years ago, I am not aware of any such decisions from the Nova Scotia Tribunal.

Of course,the more jaded among us some might say that is because these types of cases have never been allowed to make it to a Tribunal in this Province. [2]

[1] It isamazing how closely the facts of this case parallel that of a Nova Scotia case from quite a few years back. When that situation was brought to the attention of the NS Human Rights Commission, the parents were shut down on the basis of a Commission policy providing that no claims of discrimination in connection with a student would be considered unless and until all avenues of appeal had been exhausted under the Education Act. Whether this policy is still in existence I cannot say; however, I was recently advised by a Commission employee that she was not familiar with any such policy and a review of the Commission's policies currently available online show no such policy.

[2] Pursuant to sec. 29(4) of Nova Scotia's Human Rights Act, the Commission may dismiss a complaint at anytime in various circumstances, including if the complaint is considered without merit, raises no significant issues of discrimination or there is no reasonable likelihood that an investigation will reveal a contravention of the Act.

Sunday, January 20, 2013

I just completed a telephone survey about my impressions on how our current provincial government is doing. But before you go off on that tangent, that is not what motivated me to drop what I was doing (yeah, I was most definitely in the middle of something when the phone rang but what can I say ... I do like surveys) and write this post.

What motivated me is this - the survey was lengthy (to the point of annoyance, really) but as we neared the end of the call, it hit me like a lightning bolt - what was missing.

Anyone care to hazard a guess?

It was us.

Me.

You.

Our children.

Our families.

Oh sure, we were there. Of course, we were there. In everything from power rates to emergency health care to the HST to creating more jobs in rural Nova Scotia to class sizes in elementary school .... on and on it went. All that stuff is important and relevant to varying degrees to all of us.

But what was missing was any reference to any issues relevant to the disability community.

Interestingly (but not surprisingly), seniors were prominently featured. Children were there. Families were there. Small business were there. But there was absolutely NO mention of the disability community or any of our issues.

The closest thing to our issues was, in fact, rather a stretch - one question on how important I felt it was to help those most in need. In my mind, that includes those in the disability community. But for most many of our fellow Nova Scotians, I would hazard a guess that the disability community most definitely did not jump to the front of their mind when asked that question.

We, my good friends, are not on the radar.

And, if our issues are not on the radar, how in the world can we possibly expect to have them addressed?

If, when the government assesses public opinion on the importance of various issues, people are never even asked their opinion on the issues so important to us and our families, how will government ever assess (let alone grow) the political will to tackle our issues?

How, indeed.

This is a post about questions, not answers. But, should anyone have any answers, I, for one, would love to hear them.

Because, really, people ... I'm thinking we have a serious problem here.

Friday, January 4, 2013

Some of you might recall our discussion back in 2010 of as to exactly what duty schools and school boards have to keep our children (be they typical or challenged in some manner) safe during the school day.

In examining that issue we noted that the duty to keep students safe essentially comes from two difference sources; the Education Act and the duty of care at common law (which simply means judge-based law that is not found in legislation).

This means that in addition to the duty under the Education Act to take all reasonable steps necessary to create and maintain an orderly and safe learning environment and "attend to the health, safety and comfort of students", at common law, teachers and other educators are said to stand "in loco parentis" - meaning that they "stand in the place of parents". Thus, the duty imposed on educators is that of a "reasonably careful or prudent parent in the circumstances", a higher standard of care from normal negligence cases involving adult defendants - the educator must not just act as a reasonable person but as a "reasonably careful or prudent parent:".

Expanding a bit on our previous discussion, today I came across an interesting article written by an American "education expert" on this very topic. And while you might question the relevance of something written from the American perspective, the fact is that the common law duty applicable in the US is very similar (if not identical) to that in Nova Scotia. The reason being that although the legislation is often very different in the two countries, the US inherited its common law from Britain, just as we did.

In any event, the article examines the exact same legal issues we previously discussed (educators standing in loco parentis, the standard of the reasonable and prudent professional and the test of foreseeability) and then applies these principles to three different real-life fact situations where (typical) students were injured at school.

In two of the three cases, the schools were found liable for the student's injuries. Can you guess in advance which ones involved liability?

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